About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2017
>>
[2017] ZACC 11
|
|
Department of Home Affairs v Public Servants association and Others (CCT148/16) [2017] ZACC 11; (2017) 38 ILJ 1555 (CC); 2017 (9) BCLR 1102 (CC) (4 May 2017)
Links to summary
Heads of arguments
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 148/16
In the matter between:
DEPARTMENT OF HOME
AFFAIRS
Applicant
DEPARTMENT OF PUBLIC SERVICE
AND
ADMINISTRATION
Intervening Party
and
PUBLIC SERVANTS
ASSOCIATION
First Respondent
NATIONAL UNION OF PUBLIC SERVICE
AND ALLIED
WORKERS
Second Respondent
NATIONAL EDUCATION HEALTH AND
ALLIED WORKERS
UNION
Third Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL
Fourth Respondent
P M NGAKO
N.O.
Fifth Respondent
Neutral citation:
Department of Home Affairs v Public Servants Association and
Others
[2017] ZACC 11
Coram:
Mogoeng
CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ, and Zondo J
Judgments:
Froneman J (unanimous)
Heard on:
28 February 2017
Decided on:
4 May 2017
Summary:
Conciliation — Matters of mutual interest — Duties of
conciliators — Application for leave to appeal dismissed
—
Application for leave to intervene dismissed
ORDER
It is ordered
that:
1.
The application for leave to appeal is dismissed.
2.
The application by the Department of Public Service and
Administration to intervene
as second applicant is dismissed with
costs.
JUDGMENT
FRONEMAN J (Mogoeng CJ, Nkabinde ADCJ,
Cameron J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ,
Pretorius AJ, and Zondo
J concurring):
Introduction
[1]
Some might have harboured the hope that
this judgment would clarify the distinction between so-called “rights
disputes”
and “interest disputes” in labour law and
under the Labour Relations Act
[1]
(LRA/Act), and whether and to what extent the right to strike as
embodied in that statute depends on the distinction. The
bottom
line here will disappoint. It is this: disputes about matters
of mutual interest referred to conciliation must be
conciliated, be
they “rights” or “interest” disputes.
It is not the function of the conciliator to
pronounce on whether the
dispute is one of “rights” or one of “interest”.
Background
[2]
In March 2015 the first and third
respondents, two public sector unions, referred a dispute of alleged
mutual interest to the fourth
respondent (Bargaining Council)
for conciliation. The second respondent, also a union, joined
the application.
For ease of reference I will refer to the
first three respondents collectively as “the unions”.
[3]
The dispute arose when, in February
2015, the applicant, the Department of Home Affairs
(DHA), proposed changes to
the scheduling of working hours for
employees to introduce Saturday workdays. It adopted the
position that the proposal was
open to consultation, but not
collective bargaining. The unions opposed the proposed changes
and contended that they should
be subject to collective bargaining.
The parties could not come to an agreement and the DHA subsequently
issued a circular
confirming that the new proposal would come into
effect on 23 March 2015.
[4]
The dispute was set down for
conciliation by the Bargaining Council on 2 April 2015.
At the hearing, the DHA challenged
the Bargaining Council’s
jurisdiction on the basis that the alleged dispute did not involve a
matter of mutual interest.
The panellist upheld the objection,
finding that the matter referred to conciliation “is not a
matter of mutual interest;
consequently the [Bargaining Council]
lacks jurisdiction in this matter”.
[5]
The unions took this decision on review
to the Labour Court. The review application was successful and
the Bargaining Council
was “directed to enrol the dispute of
mutual interest for conciliation by a [conciliator] other than the
[original] conciliator”.
The Labour Court held that the
dispute did involve a matter of mutual interest and had to be
conciliated.
[6]
Leave to appeal to the Labour Appeal
Court was refused. The application for leave to appeal to this
Court is the final step
in the process.
[7]
What constitutes a matter of mutual
interest is not defined in the LRA. The term “serves to
define the legitimate scope
of matters that may form the subject of
collective agreements, matters which may be referred to the statutory
dispute resolution
mechanisms, and matters which may
legitimately form the subject of a strike or lock out”.
[2]
“Interest” and “rights” disputes are
both matters of mutual interest.
[3]
This matter deals with reference of a
dispute about a matter of mutual interest to conciliation. Whether
the matter
is a dispute of interest or right, and therefore whether
it may legitimately form the subject of a strike, is not relevant for
the determination of whether it may trigger conciliation under the
LRA. It is the failure to make this distinction that led
the
then counsel for the DHA and, in turn, the conciliator at the
Bargaining Council, astray.
[4]
[8] How this happened is aptly described
in the Labour Court judgment:
“
[T]he
controversy regarding the reach of the term [mutual interest] stems
from the fact that in the referrals for conciliation,
the unions
ticked the ‘matters of mutual interest’ box, when asked
to describe the nature of the dispute. In
labour law parlance,
what this means in practical terms is that the unions consider the
dispute to be one over which a protected
strike can be called. This
in circumstances where one of the defining elements of a ‘strike’
in section 213 of
the LRA is that its purpose must be the remedying
of a grievance or resolving a dispute in respect of ‘any
matter
of mutual interest
between employer and employee.’”
[5]
[9] Before the Bargaining Council
conciliator, the DHA sought to frame the issue as a jurisdictional
one, namely that the issue
between the parties was not one of mutual
interest at all. The conciliator agreed, stating that the
dispute was merely about
a “work practice” that falls
within the employer’s prerogative.
[6]
[10]
Disputes about matters of mutual
interest may be referred to conciliation by a commissioner
[7]
or a bargaining council
[8]
under the LRA. Work practices and their alteration by
management lie at the heart of employment relationships and a dispute
about them would certainly qualify as matters of mutual interest
capable of being referred to conciliation under the LRA.
[11] That should really be the end of
the matter. The Bargaining Council conciliator had jurisdiction
to conciliate the matter
before him. That particular
consequence, in the context of strike action, is not relevant in
determining whether a change
in work practices is a matter of mutual
interest that may trigger conciliation under the LRA.
Issues
[12]
Before us, however, the DHA changed tack
slightly, and subtly. Although not abandoning the
jurisdictional point completely,
it now concedes that the parties’
dispute related to a matter of mutual interest. But it advanced
the argument that
the efficacy of conciliation is dependent on a
correct characterisation of the kind of dispute that needs to be
conciliated.
Conciliating a “rights dispute” that
can be resolved by law, differs from conciliating an “interest
dispute”,
which depends for its resolution on economic power
play. Without that clarity beforehand the purpose and the
effectiveness
of conciliation are undermined.
[13]
The submission cannot be sustained.
The LRA does not speak of “rights disputes” or
“interest disputes”.
A strike about a matter of
mutual interest that a party has a right to refer to arbitration or
to the Labour Court under section
65(1)(c) of the LRA may not be
protected, but whether it falls within that limitation neither
defines the jurisdiction of a conciliator
under the Act, nor does it
prevent the conciliator from attempting conciliation of the
“disputed” dispute. Her
function is to attempt
conciliation and if that fails, to certify that the dispute has not
been resolved. After the expiry
of the statutory conciliation
period, the unions would have been entitled to strike, even if the
certification was not forthcoming.
[9]
Leave to appeal
[14]
The proper interpretation of the LRA
raises a constitutional issue, but before granting leave, the appeal
must raise “important
issues of principle”.
[10]
It is on the latter score and because the matter has no prospects of
success that the applicant fails to convince.
It is therefore
not in the interests of justice to grant leave.
[15]
At a very late stage the Department of
Public Service and Administration (DPSA) sought leave to intervene as
second applicant and
also sought to introduce new evidence on the
history of the change to working hours that led to the dispute.
The explanation
for the late intervention was inadequate. Its
perspective on the legal issues surrounding the meaning of “mutual
interest”
was similar to that of the DHA and the tendered
evidence did not comply with this Court’s rules for the
admission of new
evidence. The application for intervention
must fail.
Costs
[16] Normally, each party pays its own
cost in a labour matter. The only costs order is in relation to
the DPSA’s costs
in the unsuccessful intervention.
Order
[17]
The following order is made:
1.
The application for leave to appeal is dismissed.
2.
The application by the Department of Public Service and
Administration to intervene
as second applicant is dismissed with
costs.
For the
Applicant:
T Ngcukaitobi, A Msimang and L Zikalala instructed by the
State Attorney, Pretoria
For the Applicant in the application for
leave to intervene as Second Applicant
in the main
application:
T J Bruinders SC and E Richards instructed by the State Attorney,
Pretoria
For the First to Third
Respondents:
C Orr instructed by Bowman Gilfillan Inc
[1]
66 of 1995.
[2]
Vanachem Vanadium Products (Pty) Ltd v National Union of
Metalworkers of SA
[2014] ZALCJHB 159; (2014) 35
ILJ
3241
(LC);
[2014] 9 BLLR 923
(LC) at para 17.
[3]
See generally
Apollo Tyres South Africa (Pty) Ltd v Commission
for Conciliation Mediation and Arbitration
[2013] ZALAC 3
;
(2013) 34
ILJ
1120 (LAC); [2013] 5 BLLR 434 (LAC).
[4]
To say simply that a “dispute of right” cannot be the
subject of a protected strike may be misdirected – see
paras
12-3 below. The proscription on strikes is contained in
section 64(4) of the LRA.
[5]
Public Servants Association v National Union of Home Affairs
[2015] ZALCJHB 326 (Labour Court judgment) at para 17.
[6]
Section 7 of the Basic Conditions of Employment Act 75 of 1977
provides that the employer “must regulate the working time
of
each employee”.
[7]
Section 134 of the LRA provides:
“(1) Any party
to a dispute about a matter of mutual interest may refer
the dispute
in writing to the Commission, if the parties to the dispute are—
(a) on
the one side—
(i)
one or more trade unions;
(ii)
one or more employees; or
(iii)
one or more trade unions and one or more
employees; and
(b) on
the other side—
(i)
one or more employers’ organisations;
(ii) one
or more employers; or
(iii) one or
more employers’ organisations and one or more employers.
(2) The
party who refers the dispute to the Commission must satisfy
it that
a copy of the referral has been served on all the other parties to
the dispute.”
[8]
Section 51(3) of the LRA provides:
“(3) If a
dispute is referred to a council in terms of this Act and any
party
to that dispute is not a party to that council, the council must
attempt to resolve the dispute
(a)
through conciliation; and
(b)
if the dispute remains unresolved
after conciliation, the council
must arbitrate the dispute if—
(i)
this Act requires arbitration
and any party to the dispute has
requested that it be resolved through arbitration; or
(ii)
all the parties to the dispute
consent to arbitration under the
auspices of the council.”
[9]
City of Johannesburg Metropolitan Municipality v South African
Municipal Workers’ Union (SAMWU)
[2009] ZALC 103
; (2010)
31
ILJ
1175 (LC); [2011] 7 BLLR (LC) at para 15.
[10]
Rural Maintenance (Pty) Limited v Maluti-A-Phofung Local
Municipality
[2016] ZACC 37
; (2017) 38
ILJ
295 (CC); BCLR
64 (CC) at para 17;
National Education Health and Allied Workers
Union v University of Cape Town
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at para 31; and
South African Police
Service v Solidarity obo Barnard
[2014] ZACC 23
;
2014 (6) SA 123
(CC);
2014 (10) BCLR 1195
(CC) at para 4.